The frequency with which the Obama administration has gone rogue and completely ignored Congress’ will seems to increasing at an exponential rate. I fear that by the end of the campaign Obama will be issuing executive fiats on a daily basis. The latest: gutting welfare reform.

Yesterday the Obama administration gutted those federal work rules, ignoring the will of Congress by issuing a policy directive that allows the Department of Health and Human Services to waive the work requirements for the Temporary Assistance for Needy Families (TANF) program. “The result is the end of welfare reform,” wrote Robert Rector and Kiki Bradley of The Heritage Foundation.

Surely there was a provision in the legislation that permitted the president to grant such waivers, right? Yes. And no.

Today the Obama administration issued a dramatic new directive stating that the traditional TANF work requirements will be waived or overridden by a legal device called a section 1115 waiver authority under the Social Security law (42 U.S.C. 1315).

Section 1115 allows HHS to “waive compliance” with specified parts of various laws. But this is not an open-ended authority: All provisions of law that can be overridden under section 1115 must be listed in section 1115 itself.

The work provisions of the TANF program are contained in section 407 (entitled, appropriately, “mandatory work requirements”). Critically, this section, as well as most other TANF requirements, is deliberately not listed in section 1115; its provisions cannot be waived. Obviously, if the Congress had wanted HHS to be able to waive the TANF work requirements laid out in section 407, it would have listed that section as waivable under section 1115. It did not do that.

Remember all those crocodile tears during the Bush years about the unitary executive? Leaving aside the fact that critics completely misrepresented the doctrine and its application, it seems the left has no problem with a president truly implementing the unitary executive doctrine. Only this time instead of the President being supreme within the Executive branch, he is evidently supreme over the entire federal government.

There will of course be no repercussions from this action. While it might be cathartic to pound the keyboard about the spineless Republicans, no amount of caterwauling can change the fact that the overwhelming majority of Democrats will ensure that no corrective action is taken. It was hard enough to get a contempt vote in the House against Eric Holder. Do you think the Democrats will really allow a serious investigation, or even more?

And that’s a true pity. There used to be a time when partisan identification was almost secondary to institutional concerns. Congressmen valued the independence and authority of their own branch of government, and simply sharing party affiliation with the president didn’t prevent Congressmen from jealously guarding their prerogatives. Inter-branch rivalries were an essential element in safeguarding our republic. Today that is gone. The same committee (Oversight) that has been commendably fastidious in investigating Fast and Furious will lay down like neutered dogs should Mitt Romney win the presidency. The committee was sure loath to investigate President Obama when controlled by Democrats two years ago.

This is truly a bi-partisan issue. Congress has completely abandoned its role as an independent, co-equal branch of government. The very fact that we are so consumed by the presidential campaign is a sad reflection of how pre-eminent the presidency has become.

Congressional Democrats should be just as furious as Congressional Republicans over Obama’s actions, regardless of how they feel about the policy. Wouldn’t it be nice if Congress as a whole regained a sense of institutional pride and reasserted their place in the federal framework? Sadly that’s as realistic an expectation as hoping that John Boehner will become John Rambo.

For those who didn’t watch the video, skip to about the 3:35 mark where Secretary of Defense Leon Panetta responds to a question about creating a no-fly zone over Syria. He states that the administration would seek international approval and then inform Congress about its actions.

That’s right – international sanction for military action would take precedence over Congressional authority. And that makes complete sense, because in the United States Constitution it clearly states right there in Article I, Section 8 that international bodies shall have the power to declare war and therefore bring the United States into armed conflict.

Oh. Wait. It’s Congress that has the power to declare war. Silly me. But we live in an international age, and if the Supreme Court can rely on international law in order to decide cases, then by golly the President of the United States should be able to commit American troops to armed conflict with a nice note from the U.N. or some other international body.

And at least he’ll be nice enough to let Congress know. Maybe he’ll text Speaker Boehner about it, but only after he gets off the phone with Sandra Fluke. Priorities.

I can’t tell you how many times that, when I’ve asked someone to cite the constitutional authority for the point they are arguing, they vaguely give me an Article and Section number without explaining how said article justifies their favored course of action. Well, you will all be happy to know that our representatives in Congress are not any better at offering specifics.

At the beginning of the 112th Congress, as part of an effort to inject more transparency into the legislative process, the House adopted a rule requiring that each bill be accompanied by a Constitutional Authority Statement. The purpose of the rule was to expose the cavalier attitude of those members who desire to legislate ‘just because they can.’

Well, after a year of legislating under this rule, it appears that we are in serious need of accountability measures to provide some clarity and specificity to the authority statement. Otherwise, the rule will be regarded as yet another “transparency” gimmick of Congress.

Republican congressional staffers combed through almost 3800 bills and joint resolutions that have been introduced this year, in an effort to gauge the clarity and specificity of the Constitutional Authority Statements. For the most part, the results are pretty pathetic. Here are some of their key findings:

Overall, 945 bills contained authority statements which do not reference a specific power granted by the Constitution. Many of these merely cited “Article 1” or “Article 1 Section 1” “Article 1 Section 8.” In other words, they just cited the fact that Congress has the power to legislate, but failed to divulge which constitutional power or specific clause is supporting their legislation.

There were 732 bills which only referenced the commerce clause, 660 which only referenced the general welfare clause, and 321 which mentioned the necessary and proper clause without reference to a previous Constitutional clause to which the necessary and proper clause might apply.

In total, there were 2658 Constitutional Authority Statements that were either questionable or vague. That represents roughly 69% of all bills and resolutions introduced in the 1st Session of the 112th Congress.

While more of the vague citations are attributable to Democrat bill sponsors, many Republicans were lax in offering meaningful authority statements. Almost as many Republicans used the inexplicit commerce clause as Democrats.

This highlights a number of problems with both Congress and our understanding of the Constitution in general. First of all, attempts to reign in Congress are almost always futile because Congressmen are adept at skirting around clear legislative language. After all, we’re dealing with a bunch of lawyers – both on staff and in Congress itself. Lawyers are masters of finding, and then abusing the fine print.

But let’s not just chalk up to maliciousness what we can also chalk up to laziness. Yes, these are all smart people, but they’re also lazy. When staff drafts legislation* they don’t have enough time to be rummaging around 100-year old, dry old documents like the U.S. Constitution. They can vaguely remember their Con Law class and some decision handed down by some FDR-appointed judge that says that the commerce clause covers that, and so VOILA! Constitutional justification.

*: And, by the way, make no mistake about it – it’s Congressional staff that writes legislation. Do you think Congress critters are the ones hammering away at their laptops drafting this minutiae? Of course not. Do you really think they’re busy putting together 2,000 page documents? Uh uh. No, we are governed by 30 year olds fresh out of law school who are just biding their time until they get a job with a K Street firm that will lobby Congress on the labyrinth legislation that said staffer just penned. Meanwhile, the people who actually have to vote on these bills have, at best, skimmed them, trusting their personal staffers to give them the gist of what is written on paper. Just what our Framers envisioned, right?

Finally, let’s be honest – the FDR appointed judge probably just muttered something about the commerce clause in the ruling, offering barely much more substance than the Congressional staffer. Over the years the judiciary, through the beneficence of broad interpretation, has often stretched Constitutional meaning beyond the breaking point. If staff were inclined to beef up their Constitutional Authority Statements, we would be no more satisfied with the end result. It would still likely be utter malarkey, just better sourced and more specific-sounding malarkey.

Still, I think this exercise has one useful purpose. We all knew that Congress was just making it up as it went along, and now we have written proof of that.

1. Ponzi scheme participation is voluntary, unlike Social Security where participation is mandatory for most citizens.

2. Ponzi scheme participants usually receive brightly colored reports telling them how much illusory interest their investments are earning. Social Security participants make do with drab annual reports.

3. When a Ponzi scheme goes bust the perpetrators can be sued for damages. Good luck suing the Feds after Social Security goes belly up!

4. Participants in a Ponzi scheme do not lose their claim against the perpetrators upon death, unlike people who die prior to receiving a check from Social Security.

5. Ponzi schemes usually have few to no solid assets that can be seized by participants. Social Security has endless IOUs signed by Uncle Sam. Continue reading →

The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; – Article I, Section 8

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. – Article II, Section 2

It’s not a good feeling agreeing with Dennis Kucinich. Finding myself on the same side of an issue as Kucinich makes me seriously reconsider my opinion. But as they say, even a bind, deaf, paralyzed, rabies-afflicted squirrel finds a nut every now and again.

It’s less distressing to disagree with Charles Krauthammer. He’s usually spot on, but he tends to go off the rails when it comes to foreign policy. Not always, mind you, but in Krauthammer you can see the legitimate difference between neoconservatism and traditional conservatism. Last night he had this to say about the War Powers Act and President Obama’s war hostilities kinetic military action in Libya:

KRAUTHAMMER: I understand why Congress wants to retain prerogatives, as does the president. I’m not surprised that Durbin would act this way. I am surprised that so many Republicans are jumping on the war powers resolution. They will regret it. If you have a Republican in office, you have isolationists Democrats trying to restrain his exercise of his powers under constitution and the Republicans aren’t going to like it.
I would not truck in war powers resolution. I have also think the administration’s defense of what it is doing is extremely week and misguided. Obama’s answer essentially is well, the resolution is out there. But it’s not relevant because it isn’t really a war, which is absurd.

BAIER: We’re not in hostilities.

KRAUTHAMMER: Right. What he should say I, like my other predecessor, I do not recognize the legality of this act and its authority over the presidency. That’s where he should make his stand.

BAIER: When he was Senator Obama he spoke the opposite.

KRAUTHAMMER: And as a president he is implicitly supporting the resolution saying it doesn’t apply here. It implies if it were a real war, as he pretends it’s not. I have to comply. No president ought to do that.

I agree with him with regards to Obama’s duplicity. I also share his skepticism about the War Powers Act. But he’s wrong about the rest. Continue reading →

From the only reliable source of news on the net, the Onion. I don’t know, I think we would be better off if Congress had forgotten how to pass a law a few years ago. At any rate, I always attempt to come to the assistance of fools, drunks and the United States Congress, so here is a little reminder as to how a bill becomes a law: Continue reading →

I’ll leave it up to others on the blog to discuss the merits of the compromise on taxes and unemployment benefits recently reached between President Obama and Congressional Republicans. For what it’s worth, I’d probably vote for it were I a member of Congress (shudder), but I do think that the Republicans could have pushed a little harder on certain measures.

What fascinates me as a student of American history are some of the reactions, and also some of the reactions to the reactions. First of all, Congressional Democrats have rejected the measure in a non-binding caucus vote. This has caused Jim Geraghty to ponder: